OVERVIEW OF NPO ENTITIES

Transcription

1 OVERVIEW OF NPO ENTITIES CA Rajkumar S Adukia B. Com (Hons.), FCA, ACS, ACMA, LL.B, M.B.A, DIPR, Dip IFRS (UK), Dip LL & LW, Dip Criminology / rajkumarradukia@caaa.in

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3 NPOS ALSO KNOWN AS NPIs Non-Profit Institutions NGO - Non Governmental Organization VO - Voluntary Organization Vas - Voluntary Agencies NGDOs - Non-Governmental Development Organisations CSO - Civil Society Organization CBO - Community Based Organization CO - Charitable Organization TSO - Third Sector Organization

4 WHAT IS NPO? independent organization for promoting commerce, art, science, religion, charity or other similar objectives organization that is not allowed to distribute profits to its owners money earned by or donated to a not for profit organization is used in pursuing the organization's objectives usually considered as charitable organization

5 WHAT IS NPO? Public Charities Public Schools Hospitals Legal Aid Societies Volunteer Services Organizations Labour Unions Professional Associations Research Institutes Religious Institutions

6 TYPOLOGY OF NPOS Traditional Associations Religious Associations Social Movements Membership Associations Intermediary Associations

7 NPOS & CORPORATIONS- DIFFERENCE NPOs Company / corporation Set up for promoting commerce, art, science, religion, charity or other similar objectives set up for purposes of engaging in market production not allowed to distribute profits to its owners capable of generating a profit or other financial gain for their owners

8 CHARITY Charity is the act of giving money, goods or time to the unfortunate, either directly or by means of a charitable trust or other worthy cause. Term charity derived from the Old French word "charité" which was derived from the Latin word "caritas". caritas became the standard Latin translation for the Greek word agape, meaning an unlimited loving-kindness to all others, such as the love of God.

9 CHARITABLE ORGANIZATION organization with charitable purposes only; are non-profit organizations; not all non-profit organizations are charitable organizations; roots of charity are to be found in religious belief and practice; but charitable trusts and voluntary organizations are its secular and institutional manifestation; primary function - is to give benefit to the public by performing worthy causes that helps the public at large.

10 CHARITABLE PURPOSE Charitable purpose includes relief of poverty or distress education medical relief provision for facilities for recreation or other leisure time occupation if the facilities are provided in the interest of social welfare and public benefit the advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship

11 BASIC CHARACTERISTICS OF A CHARITABLE ORGANISATION Formal - institutionalized and registered Private - institutionally separate from the Government Self-governing - not controlled from the outside Not for profit - cannot distribute profits Voluntary - voluntary participation Non-religious Non-political Works for public benefit

12 STRUCTURE OF NPOS IN INDIA An NPO can be in the form of - 1. Trusts (Public or Private Trusts) 2. Society (Regd under Societies Registration Act, 1860) 3. Section 8 Company (Under Companies Act, 2013) 4. Non Trading Corporations 5. Autonomous Bodies 6. Trade Union 7. Political Parties

13 CONSTITUTIONAL PROVISIONS Article 19: Right to Freedom 19(1)(c): All citizens shall have the right to form associations or unions. Article 26: Freedom to manage religious affairs The State list Entry 32 Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies. Concurrent List Entry 10 Trusts and Trustees Entry 28 Charities and charitable institutions, charitable and religious endowments and religious institutions.

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15 TRUST Concept of trust developed since Roman times and have become one of the most important innovations in property law a relationship whereby property is held by one party for the benefit of another created by a settlor, who transfers some or all of his or her property to a trustee trustee holds that property for the trust's beneficiaries

16 TERMINOLOGIES Author of a Trust - The person who reposes or declares the confidence Trustee - The person who accepts the confidence Beneficiary - the person for whose benefit the confidence is accepted Trust Property - the subject-matter of the trust Beneficial Interest - the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust-property Instrument of Trust - the instrument, if any, by which the trust is declared

17 Revocable Trusts Irrevocable Trusts Intervivos Trusts Implied Trusts Testamentary Trusts Express Trusts Discretionary Trusts Fixed Trusts Hybrid Trusts Constructive Trusts Resulting Trusts Bare Trusts TYPES OF TRUSTS

18 REQUISITES OF A TRUST The existence of the author/settler of the trust or someone at whose instance the trust comes into existence Clear intention of the author/settler to create a trust Purpose of the Trust The Trust property Beneficiaries of the Trust divesting of the ownership by the author / settlor of the trust in favour of the beneficiary or the trustee unless all these requisites are fulfilled a trust cannot be said to have come into existence

19 MAJOR TYPES OF TRUSTS IN INDIA Public Trusts (excluded from the ambit of Indian Trusts Act, 1882) Private Trusts (formed under the Indian Trusts Act, 1882)

20 PUBLIC TRUST Public Trusts may be created either by inter vivos or by will Exempt from rule against perpetuities Public Trusts do not need a Formal Deed for constitution Public Trusts are an exception to the well laid rule that there is no valid trust unless objects are specified

21 PUBLIC TRUST There is no All India Level Act for setting up public charitable trusts. Maharashtra and Rajasthan have independent state level public trust acts. Many States do not have any act to register a public trust. In the state of Maharashtra and Gujarat, all organizations that are registered as 'Society' are by default also registered as Public Trust

22 PRIVATE TRUSTS Private Trusts are governed by the Indian Trusts Act, 1882 Beneficiaries: It is not the society at large but one or two particular individuals as beneficiaries

23 LAWS GOVERNING PRIVATE TRUSTS IN INDIA Central Legislations The Indian Trusts Act, 1882 Indian Stamp Act, 1899 Civil Procedure Code, 1908 Registration Act, 1908 The Income tax Act, 1961 And other acts that are applicable to entities: eg. Service Tax, VAT, etc

24 LAWS GOVERNING PUBLIC TRUSTS IN INDIA Central Legislations Charitable and Religious Trusts Act, 1920 Religious Endowments Act, 1863 Charitable Endowments Act, 1890 Indian Stamp Act, 1899 Civil Procedure Code, 1908 Registration Act, 1908 Official Trustees Act, 1913 The Income tax Act, 1961 And other acts that are applicable to entities: eg. Service Tax, VAT, etc

25 LAWS GOVERNING TRUSTS IN INDIA State Legislations Maharashtra Public Trusts Act, 1950 Maharashtra Public Trusts Rules, 1951 Rajasthan Public Trust Act, 1959 Uttar Pradesh Charitable Endowments (Extension of Powers) Act, 1950 Charitable Endowments (U.P. Amendment) Act, 1952 The Madras Hindu Religious and Charitable Endowments Act 1951

26 LAWS GOVERNING TRUSTS IN INDIA State Legislations Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 The Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961 Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 Jammu and Kashmir Charitable Endowments Act, 1989 Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 Karnataka Hindu Religious Institutions and Charitable Endowments Rules, 2002

27 RELIGIOUS TRUSTS / ENDOWMENTS Any trust made for the advancement, support or propagation of a religion and its tenets Religious Endowments & Waqfs are variants of Trusts which are formed for specific religious purposes Religious endowments arise from dedication of property for religious purposes.

28 RELIGIOUS TRUSTS / ENDOWMENTS Religious Endowments Act, 1863 law on private endowments which placed a property under the management of Trustee/Trustees under a will for a predefined set of beneficiaries. Charitable and Religious Trusts Act, 1920 recognised the existence of such religious bodies as entities different from Endowment Trusts formed for social and charitable purposes

29 RELIGIOUS TRUSTS / ENDOWMENTS Many State Governments enacted their own Endowments Acts and virtually took over their management Madras Hindu Religious and Charitable Endowments Act, 1951 The Travancore-Cochin Hindu Religious Institutions Act 1950 The Bodh Gaya Temple Act, 1949 The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 The Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997

30 RELIGIOUS TRUSTS / ENDOWMENTS Article 26 - Constitution of India freedom to manage religious affairs as one of the fundamental rights of its citizen right: to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law.

31 RELIGIOUS TRUSTS / ENDOWMENTS The Madras Hindu Religious and Charitable Endowments Act, 1951 provides for the better administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Madras Religious charity" means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with a math or temple or not.

32 RELIGIOUS TRUSTS / ENDOWMENTS The Madras Hindu Religious and Charitable Endowments Act, 1951 "religious endowment" or "endowment" means all property belonging to or given or endowed for the support of maths or temples or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity; and includes the institution concerned and also the premises thereof, but does not include gifts of property made as personal gifts to the archaka, serviceholder or other employee of a religious institution

33 RELIGIOUS TRUSTS / ENDOWMENTS The Religious Institutions (Prevention of Misuse) Act, 1988 an Act to prevent the misuse of religious institutions for political and other purposes religious institution means an institution for the promotion of any religion or persuasion, and includes any place or premises used as a place of public religious worship, by whatever name or designation known.

34 RELIGIOUS TRUSTS / ENDOWMENTS The Religious Institutions (Prevention of Misuse) Act, 1988 prohibits the use of religious institutions for certain purposes prohibits the use of funds of Religious institutions for the benefit of any political party or for the purpose of any political activity or for the commission of any act which is punishable as an offence under any law

35 WAQFS

36 WAKF permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. Currently, about 3,00,000 Waqfs in India being administered under various provisions of the Waqf Act, 1995.

37 IMPORTANT ENACTMENTS ON WAQFS Mussalman Wakf Validating Act,1913 Mussalman Wakf Act, 1923 Mussalman Wakf Validating Act, 1930 Wakf Act, 1995

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39 SOCIETY a company or an association of persons united together by mutual consent to deliberate, determine and act jointly for same common purpose Minimum seven persons, eligible to enter into a contract, can form society

40 WHAT IS A SOCIETY? 40 1 The aggregate of people living together in a more or less ordered community. 2 An organization or club formed for a particular purpose or activity

41 CLASSIFICATION OF SOCIETIES 41 SOCIETIES Co-operative Societies Societies (Charitable) Commercial Non-Commercial Multi-State Cooperative Societies State Cooperative Societies Societies falling under Societies Registration Act, 1860

42 KINDS OF SOCIETIES REGISTERED UNDER S R ACT, 1860 Charitable societies, The military orphan funds or societies established at the several presidencies of India, Societies established for the promotion of science, literature, or the fine arts for instruction, The diffusion of useful knowledge,[the diffusion of political education], The foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public or Public museums and galleries of paintings and other works of art, collections of natural history, Mechanical and philosophical inventions, instruments, or designs.

43 LAWS GOVERNING SOCIETIES IN INDIA The Societies Registration Act, 1860 State Acts The Rajasthan Societies Registration Act, 1958 The Karnataka Societies Registration Act, 1960 Karnataka Societies Registration Rules, 1961 The West Bengal Societies Registration Act, 1961 The West Bengal Societies Registration Rules, 1963 Societies Registration (Maharashtra) Rules, 1971 The Madhya Pradesh Registrikaran Adhiniyam, 1973 The Tamil Nadu Societies Registration Act, 1975 Tamil Nadu Societies Registration Rules, 1978 The Uttar Pradesh Societies Registration Rules,1976

44 LAWS GOVERNING SOCIETIES IN INDIA State Acts The Meghalaya Societies Registration Act, 1983 Manipur Societies Registration Act, 1989 The Jammu & Kashmir Societies Registration Act, 1998 Andhra Pradesh Societies Registration Act, 2001 Mizoram Societies Registration Act, 2005 Mizoram Societies Registration Rules, 2006 Himachal Pradesh Societies Registration Act, 2006 Himachal Pradesh Societies Registration Rules, 2006 Haryana Registration and Regulation of Societies Act, 2012

45 DOCUMENTS FOR THE FORMATION OF SOCIETIES SECTION 2 MOA and Rules and Regulations The memorandum of association shall contain the following things, that is to say,- the name of the society; the object of the society; the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the 0management of its affairs is entrusted. A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the memorandum of association.

46 WHAT IS A GOVERNING BODY UNDER SORACT, 1860? The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

47 ANNUAL LIST OF MANAGING/GOVERNING BODY TO BE FILED SEC 4 SOR ACT, 1860 Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the societies is held, or, if it rules do not provide for an annual general meeting, in the months of January, list shall be filed with the Registrar of Joint Stock Companies, of the names, addresses and occupations of the governors, council, director, committee, or other governing body then entrusted with the management of the affairs of the society.

48 ON REGISTRATION OF A SOCIETY Registered Certificate Registrar of Societies State and District Wise Record of Registered Societies The registration gives the society a legal status and is essential for opening bank accounts, obtaining registration and approvals under Income Tax Act, lawful vesting properties of societies, and gives recognition to the society at all forums and before all authorities When the society is registered, it and its members become bound to the same extent, as if each member had signed the memorandum.

49 ON REGISTRATION OF A SOCIETY A society, registered under this Act, must confine its activities to the sphere embraced by its objects. A tax imposed on a society is one imposed on the society and not on its members. A society registered under the Act enjoys the status of a legal entity apart from the members constituting it. A society so registered is a legal person just as an individual but with no physical existence. As such it can acquire and hold property and can sue and be sued. The society should be registered under the Act to acquire the status of juridical person.

50 SEC.8 COMPANY (COMPANIES ACT, 2013)

51 SEC.8 COMPANY Section 8 deals with formation of companies with charitable objects Erstwhile Sec.25 of Companies Act, 1956 Companies Act, 2013 replaced the 57 year old Companies Act, sections notified till date Sec.8 notified with effect from 01/04/2014 The Companies (Incorporation) Rules, 2014 also covers provisions relating to sec.8 companies.

52 SEC.8 COMPANY Features Erstwhile Sec.25 of Companies Act, 1956 Sec.8 notified with effect from 01/04/2014 The Companies (Incorporation) Rules, 2014 also covers provisions relating to sec.8 companies.

53 SEC.8 COMPANY Features limited company promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object apply its profits, if any, or other income in promoting its objects prohibit the payment of any dividend to its members One person company cannot be incorporated or converted into a company under section 8 application for reservation of name in Form No. INC.1

54 Objects of the company promotion of commerce art science sports education research social welfare religion charity protection of environment any such other object SEC.8 COMPANY

55 SEC.8 COMPANY MEANING Companies formed for the sole purpose of promotion of commerce, art, science, religion, charity, and any other useful object; Which have been granted a licence by the Government With an intention to allocation its profit or other income in promotion of its objects only Which prohibits payment of dividend to its members Is allowed to drop the word limited or private limited from their names

56 BENEFITS AND PRIVILEGES. Privileg es under Compan ies Act, 2013 Certain Tax Benefits u/s 12A, 80G etc.. No Minimum Capital Benefits and Privileges Lower Registrati on Fees No Stamp Duty Exempti on from CARO, 2003 Firm can be a member

57 SEC.8 COMPANY LICENCE application for licence in Form No.INC.12 memorandum of association of the proposed company in Form No.INC.13 licence shall be issued in Form No.INC.16 registrar has power to include in the licence such other conditions as may be deemed necessary by him

58 SEC.8 COMPANY LICENCE application to be accompanied by draft memorandum and articles of association of the proposed company declaration in Form No.INC.14 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice estimate of future annual income & expenditure for next 3 years, declaration by each of the persons making the application in Form No. INC.15

59 SEC.8 COMPANY - LICENCE EXISTING COMPANIES application for licence in Form No.INC.12 licence shall be issued in Form No.INC.17 registrar has power to include in the licence such other conditions as may be deemed necessary by him application to be accompanied by memorandum & articles of association of the company declaration in Form No.INC.14 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice financial statements, Board s reports, & the audit reports for each of the 2 financial years immediately preceding the date of the application declaration by each of the persons making the application in Form No. INC.15

60 SEC.8 COMPANY - LICENCE EXISTING COMPANIES application to be accompanied by detailed statement of assets & liabilities of the company, as on the date of the application or within 30 days preceding that date estimate of the future annual income and expenditure of the company for next 3 years certified copy of resolutions passed in general/ board meetings approving registration of company under sec.8 publish a notice in Form No. INC.26 at least once in a vernacular newspaper & in an English newspaper on the websites as may be notified by the Central Government

61 SEC.8 COMPANY - LICENCE EXISTING COMPANIES Registrar may require the applicant to furnish the approval or concurrence of any appropriate authority, regulatory body, department or Ministry of the Central Government or the State Government(s).

62 CONDITIONS Utilisation of Profit/income only for the promotion of its objects Payment could be made in the form of reimbursements, interest on loan taken etc., with prior approval Conditions for Grant of License Prohibition on distribution of its profit or other income in the form of dividend to its members through Articles; No remuneration or other benefit to any of its members (including officers, servants, etc.,). No alteration of MoA and AoA without prior Govt. approval

63 FOREIGN INVESTMENTS No Section 8 companies shall receive foreign contribution without seeking certificate of registration under Foreign Contribution (Regulation) Act, 2010 from MHA Registration shall be valid for 5 years Transfer of Foreign Contribution to other person registered FCRA Utilization of foreign contribution only for the purpose for which it has been received

64 FOREIGN INVESTMENTS..ITS UTILISATION Income from foreign contribution not to be used in speculative business Foreign contributions not to be defrayed as far as possible such sum, not exceeding fifty per cent of such contribution, received in a financial year, to meet administrative expenses Foreign investments in Section 8 companies must be made in compliance with Foreign Exchange Management Act and Foreign Contribution (Regulation) Act, 2010

65 NON TRADING COMPANIES 65

66 NON TRADING COMPANIES do not exist to make a profit encouragement and development of art, architecture, science, etc provide voluntary services to its members and the public municipal corporations district boards universities sporting clubs social clubs school clubs etc. Registrar of Firms appointed as Registrar of non trading corp

67 NON TRADING COMPANIES Maharashtra Non-Trading Corporations Act, 1959 The Orissa (Non-Trading) Companies Act, 1959 The Punjab Non-Trading Companies Act, 1960 The Kerala Non-Trading Companies Act, 1961 The West Bengal Non-Trading Corporations Act, 1965 Tamil Nadu Non-Trading Companies Act, 1972

68 INCOME TAX ACT, 1961 affects all non-profit organizations (trust, society or company) uniformly throughout India Any organisation engaged in charitable purposes not involving any activity for profit, can claim exemptions of its income from tax provided that it fulfils the conditions laid down in Sections 11, 12 A and 13 of the Income tax act

69 PROFESSIONAL OPPORTUNITIES 1. Consultation 2. Drafting Documents 3. Stamping & Registration of NPOs 4. Financial Reporting & Auditing 5. Taxation 1. Direct Taxation Income Tax 2. Indirect Taxation Service Tax & VAT 6. Consultants in funding India & outside India 7. Internal Audit and Risk Control

70 PROFESSIONAL OPPORTUNITIES 8. Arbitration & Conciliation - Drafting Arbitration Agreement - Representing either of the party (plainant/defendant) to the dispute in the arbitral proceedings - Assisting Arbitrator in drafting arbitral award - Assisting to go to Court of Law - Assisting in preparing submissions to arbitrator - Acting as a member of Arbitral Tribunal - Acting as an arbitrator where required

71 PROFESSIONAL OPPORTUNITIES 9. Requirements & filings under Foreign Contribution Regulations (FCR) - Foreign Contribution (Regulation) Act, Foreign Contribution (Regulation) Rules, Foreign Contribution (Acceptance or Retention of Gifts or Presentations)Rules, Corporate governance for attracting CSR 11. Credibility Rating 12. Social Audit 13. Other Areas 1. Winding Up/ Liquidation 2. Business Process Reengineering services for NPOs

72 DEVELOPING WORK IN NPOS 1. Writing articles in NPO related magazines and other publications 2. Participating as speaker in conferences 3. Communicating with people related to NPO activities 4. Building a NPO information website 5. Writing books on topics covered under NPOs 6. Projecting oneself as an NPO Expert 7. Reaching out to the prospective service receivers 8. Using social media to reach more number of people related to NPOs 9. Increase expertise in the field of NPOs by undertaking capacity building initiatives

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